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NACWA Legislative Update May 2007

Member Pipeline - Legislative - May 2007 Update

To: Members & Affiliates, Legislative Policy Committee,
Legal Affairs Committee, Clean Water Funding Task Force
From: National Office
Date: May 22, 2007

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This edition of the National Association of Clean Water Agencies’ (NACWA) Legislative Update, current through May 21, 2007, provides information on the activities of the 110th Congress of interest to the nation’s clean water agencies. For more detailed information regarding NACWA activities related to specific legislation, click on the web links in selected news items, or contact Susan Bruninga in NACWA’s Government Affairs Department at sbruninga@nacwa.org or 202/833-3280.

NACWA’s Bill Tracker (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm) provides a direct link to congressional websites where bill texts and summaries are posted. You can find NACWA letters, statements, alerts, updates and related documents under Legislative in the Member Pipeline section of the NACWA website (http://www.nacwa.org/private/leg_index.cfm).

APPROPRIATIONS

Schedule for Work on EPA Appropriations Bills Not Expected Until June
House and Senate appropriators have not released a schedule yet for when they will begin work on legislation to fund the U.S. Environmental Protection Agency (EPA) in fiscal year (FY) 2008, which begins Oct. 1. The House and Senate appropriations committees said they do not expect to release a schedule for considering the funding bills until after the Memorial Day recess. Congress, however, did approve a conference agreement May 16 on a $2.9 trillion budget resolution that would provide $33.4 billion in discretionary spending for environment and natural resource programs, including EPA funding. The Senate version of the budget resolution contained $8.1 billion for EPA, which is $877 million above the President’s FY 2008 request and $170 million above the FY 2007 level. The conference report, however, did not specify an amount for EPA’s FY 2008 budget, leaving that detail to the appropriations committees. The Senate resolution “assumes full funding for EPA’s programs to support clean and safe drinking water” and “rejects the President’s proposal to cut a variety of environmental protection programs,” including the clean water state revolving fund (CWSRF).

The White House Office of Management and Budget (OMB) is recommending the budget resolution be vetoed because it exceeds the President’s proposal by $21 billion.

Funding for National Biosolids Partnership Makes House Earmark List
Meanwhile, the process for incorporating earmarked funds into the FY 2008 spending bills has been changed so that special requests are now identified as part of a “list of projects” for inclusion in the budget package. NACWA has learned that the U.S. House of Representatives’ list of such potential projects to be considered for the FY 2008 EPA appropriations bill includes funding for the National Biosolids Partnership (NBP). NACWA applauds its members for their hard work in ensuring the inclusion of the NBP on this list. It remains unclear how the Senate will proceed with earmarks but the inclusion on the House list ensures that the NBP will be part of the conference discussions on the FY 2008 EPA budget, and the Association is confident it will receive funding. NACWA will provide members with more information as it becomes available.

CLEAN WATER FUNDING

Senate Passes WRDA, Opens Door for Progress on SRF Reauthorization Bill
On May 16, the Senate passed its $14 billion Water Resources Development Act (WRDA) (S. 1248). Significantly, both the Senate and House versions of the WRDA bill include approximately $900 million in funds for sewer overflow control projects. In previous years, these projects were included in the House but not the Senate version of the WRDA bill and would be a subject for conference negotiations. The inclusion of these authorizations in both the House and Senate WRDA bills indicates an increasing awareness in Congress of the infrastructure funding need and a commitment to finding dollars in related legislative vehicles for water quality projects. Senate staffers say they hope to move quickly to conference with the House and have a WRDA bill ready for President Bush’s signature by July 4.

As the WRDA bill moves to conference, staff time on the critical Senate Environment & Public Works (EPW) Committee will be freed up to begin work on a bill similar to the House’s Water Infrastructure Financing Act (H.R. 720). H.R. 720, approved overwhelmingly on the House floor in March, would provide $14 billion over four years for the Clean Water State Revolving Fund (CWSRF). Although no SRF bill has yet been introduced in the Senate, discussions with staff have indicated the desire to have a bill go and to the president for signature before the 35th anniversary of the Clean Water Act, which is Oct. 18.

At the NACWA/Water Environment Federation (WEF) 2007 National Clean Water Policy Forum, an EPW Committee Minority staffer noted that Sen. James Inhofe (R-Okla.), ranking member of the EPW Committee, might introduce an SRF bill as a stalking horse after the Memorial Day recess, but that the funding levels would be slightly less than those in H.R. 720. NACWA has consistently encouraged its members to contact their Senators to urge support for SRF reauthorization. The Association remains concerned that even if such an authorization passes, funds will not be available to pay for such a bill. As such, the Association has continued its effort to develop broad-based support for a clean water trust fund as the preferred long-term funding strategy.

Trust Fund Concept Gets Boost at NACWA/WEF Clean Water Policy Forum
NACWA and the Water Infrastructure Network (WIN) continue to voice the need for a clean water trust fund. Using the WIN consensus bill as the template for legislation, NACWA is targeting the House Ways and Means Committee and the Senate Finance Committee to develop consensus on a sound, broadly acceptable revenue source for trust fund legislation. The effectiveness of these efforts were on display at the National Clean Water Policy Forum’s May 8 Utility Executives Summit.

Rep. Earl Blumenauer (D-Ore.), formerly a member of the House Transportation and Infrastructure (T&I) Committee who now sits on the powerful House Ways and Means Committee, told those attending the Utility Executives Summit that “it’s past time” for a clean water trust fund. His voice on the Ways and Means Committee will be a key to getting trust fund legislation through the House because any revenue source must have the approval of this Committee. In later remarks at the Policy Forum, Del. Eleanor Holmes Norton (D-D.C.), a member of the House T&I Committee said she too would support a clean water trust fund. NACWA will be meeting with Rep. Blumenauer on May 23 at a meeting requested by him to discuss trust fund legislation.

On May 9, several NACWA leaders and staff met with Rep. James Oberstar (D-Minn.), chairman of the House T&I Committee, to present him with the Association’s National Environment Achievement Award for his decades-long record of dedication to clean water. Chairman Oberstar spent over half an hour with this group discussing the water infrastructure funding crisis. The chairman discussed his support for the trust fund concept, his discussions on this issue with Rep. Blumenauer, and reiterated the importance of working on a bill that contained a viable revenue source.

Clean Water Act

House, Senate to Introduce Bill Redefining Waters of the U.S.
Reps. James Oberstar (D-Minn.), chairman of the House Transportation and Infrastructure Committee, John Dingell (D-Mich.), chairman of the House Energy and Commerce Committee, and Vernon Ehlers (R-Mich.) will introduce legislation May 22 that would clarify the scope of waters covered by the Clean Water Act (CWA). It is expected that the bill, which already has 150 co-sponsors, will eliminate the word “navigable” from the CWA’s “navigable waters of the United States” terminology as a way of broadening the scope of waterways covered by the act. Similar legislation is being circulated in the Senate by Sen. Russ Feingold (D-Wis.).

Recent Supreme Court rulings in Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers (discussed in more depth in NACWA’s May 2006 Legal Alert at http://www.nacwa.org/private/legalalerts/leg06-05.cfm) failed to provide a clear test that would define the reach of the CWA as it applies to non-navigable waters, including certain wetlands that are not adjacent to waters of the United States. Another Supreme Court decision in 2001, Solid Waste Agency of Northern Cook County v. Corps of Engineers, known as the SWANCC case, threw into question whether the Clean Water Act covered intrastate, non-navigable waters. Oberstar’s and Feingold’s bills would codify “waters of the United States” defined by the U.S. Army Corps of Engineers in Title 33, Part 328 of the Code of Federal Regulations as “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams…mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.”

NACWA discussed these legislative efforts in its Legal Affairs Committee meeting during the 2007 Clean Water Policy Forum May 6-9 and, on a May 8 panel, heard representatives from agricultural interests, development groups and environmental activist organizations about what it would mean to them. NACWA is studying the bill but has not yet staked out a position. The bill’s effect on municipalities remains unclear, but potential areas of concern are how changing the definition would affect the regulation of effluent-dominated streams and wetlands constructed as part of the treatment process. The current Corps of Engineers definition excludes “waste treatment systems, including treatment ponds or lagoons designed to meet the requirements” of the CWA. Other issues include how the broadening of the definition of covered waters would add to an already problematic permit backlog and whether those discharging to an effluent-dominated stream would have to meet end-of-pipe standards.

FARM BILL

Coalition Effort to Make Water Quality a Farm Bill Priority Begins to Bear Fruit
NACWA continues to work with its partners in the water sector and in the conservation community to urge Congress to ensure water quality and water quantity are a top priority in Farm Bill legislation, and signs of initial success are becoming clear. The House Agriculture Committee will begin marking up draft Farm Bill legislation this week. More importantly, a draft of the critical conservation title (http://www.nacwa.org/getfile.cfm?fn=2007-05-17drftfb.pdf) is being circulated by Rep. Collin Peterson (D-Minn.), the committee’s chairman, which contains $80 million annually or $800 million over the life of the bill for the Regional Water Enhancement Program (RWEP).

Similarly, the Bush administration’s proposed Farm Bill package includes a set-aside of $175 million annually within the Environmental Quality Incentives Program (EQIP) for RWEP, which would provide competitive grants to groups to implement water quality and conservation projects in their watersheds. The move by the Bush Administration and by Chairman Peterson is consistent with efforts by NACWA and a growing coalition of water sector and other key stakeholder groups to promote projects such as RWEP that bring multiple stakeholders, including water /wastewater agencies and farmers, together to improve water quality on a watershed basis.

On May 16, NACWA and several other key water sector and municipal groups signed a joint letter (http://www.nacwa.org/getfile.cfm?fn=2007-05-16ltrs.pdf) to key leaders of the House and Senate committees with jurisdiction over the Farm Bill urging them to “provide cooperative opportunities for water quality, quantity and conservation initiatives in the upcoming reauthorization” of the Farm Bill. In addition to NACWA, the others signing the letters included the Association of California Water Agencies (ACWA), the Association of Metropolitan Water Agencies (AMWA), Inland Empire Utilities Agency, the National Water Resources Association (NWRA), the U.S. Conference of Mayors, and the Western Coalition of Arid States (WestCAS).

“Although we believe that the proposal’s authorization level should be substantially increased given the likely allocation of only an average of $3.5 million per state, if appropriated, RWEP serves as an excellent example of the type of cooperative program that will encourage environmental partnerships,” the letter said. NACWA also signed on to a similar letter (http://www.nacwa.org/getfile.cfm?fn=2007-05-11wplfb.pdf) May 11 that included numerous environmental activist and conservation groups who are advocating for conservation programs that embrace a multi-stakeholder, watershed-based approach.

Green Infrastructure

NACWA Helps Build Support for Green Infrastructure Funding in EPA Budget
NACWA and its members worked to encourage members of the House to sign a letter (http://www.nacwa.org/getfile.cfm?fn=2007-05-11gilapp.pdf) written by Rep. Allyson Schwartz (D-Penn.) requesting that the House Appropriations Subcommittee on the Interior provide funding in the U.S. Environmental Protection Agency’s (EPA) fiscal year 2008 budget for an EPA initiative on green infrastructure, including $10 million for pilot project grants.

Meanwhile, the House Science Subcommittee on Science and Technology conducted a hearing May 10 to look at the challenges associated with incorporating green infrastructure into transportation projects. Portland, Ore., City Commissioner Sam Adams, who oversees the Bureau of Environmental Services (BES), a NACWA member agency, testified about some of the innovative approaches used by that agency. The city has incorporated a variety of green infrastructure techniques to reduce the amount of stormwater entering its combined sewer system and improve water quality. He also discussed the barriers that Portland has faced while implementing its green infrastructure plans, including a lack of acceptance from regulatory and enforcement agencies towards green infrastructure approaches. Adams emphasized the need for regulatory policies that recognize the benefits of green infrastructure, as well as uniform federal standards that can help cities and municipalities better achieve success with green infrastructure projects. Members of the subcommittee were receptive to the commissioner’s testimony and appreciated his insights and suggestions.
 

SECURITY

Senators Introduce Security Funding Legislation, GAO Releases Report on Security Costs
Sens. James Inhofe (R-Okla.), ranking member of the Senate EPW Committee, David Vitter (R-La.), ranking member of the Subcommittee on Transportation Safety, Infrastructure Security and Water Quality, and Johnny Isakson (R-Ga.), introduced security legislation that would provide $200 million to utilities who voluntarily seek the funds to perform vulnerability assessments or make security enhancements. The Wastewater Treatment Works Security Act of 2007 (S. 1303) is nearly identical to legislation previously introduced by Inhofe that passed the EPW Committee in each of the past two Congresses and with strong bipartisan support in the House of Representatives in the 108th Congress. NACWA has supported these legislative efforts and believes this new bill provides for a strong federal-municipal partnership to make needed security enhancements.

Inhofe said in his press release that “wastewater security is an essential part of a broad, concerted effort to bolster the nation’s defenses against terrorism.” His bill “provides incentives to facilities to make security improvements and conduct assessments without imposing a federal, one-size-fits all regulation.” Inhofe’s press release is available on NACWA’s website (http://www.nacwa.org/getfile.cfm?fn=2007-05-04senatewwsb.pdf).

Earlier this month, the Government Accountability Office (GAO) released its report, Securing Wastewater Facilities: Costs of Vulnerability Assessments, Risk Management Plans, and Alternative Disinfection Methods Vary Widely (http://www.gao.gov/highlights/d07480high.pdf). Several NACWA members were involved in providing GAO with data for the report, which demonstrates the wide range of costs to perform vulnerability assessments and switch to alternative disinfection methods. NACWA believes this shows that there can be no one-size-fits-all approach to security-related issues because of the unique, site-specific needs of publicly owned treatment works (POTWs).

NACWA also understands that Sen. Joe Biden (D-Del.), a presidential candidate, continues to work on legislation seeking to require a shift from chlorine gas to alternative treatment technologies. NACWA’s members provided significant input to Senator Biden on its preferred direction for such legislation — namely an incentive-based approach. The likely timing for introduction of this legislation is for after the Memorial Day recess and the Association will provide a draft version of the bill if it is made available to NACWA in advance of its introduction.

These and other security-related issues were discussed at the Security and Emergency Preparedness Issues Forum at the NACWA/WEF National Clean Water Policy Forum in Washington, D.C. and the two associations will be working jointly to address these issues going forward.